Mr. Justice Rogers in The Commonwealth v. Mann,1 and finally made it the very ground of decision in Barker v. The City of Pittsburgh.2

§ 552. In the Supreme Court of the United States, that final arbiter of rights under the Constitution, there is but one decision directly in point, though there are dicta uttered by judges. of such acknowledged learning and ability that their opinions have a certain weight of authority. Thus in Dartmouth College v. Woodward,3 Mr. Justice Story said: "The State legislatures have power to enlarge, repeal, or limit the authority of public officers in their official capacity, in all cases where the constitutions of the states respectively do not prohibit them; and this, among others, for the very good reason that there is no express or implied contract that they shall always, during their continuance in office, exercise such authorities. They are to exercise them only during the good pleasure of the legislature." He compared offices to naked powers, revocable at pleasure. Mr. Chief Justice Marshall also expressed an opinion to the same effect. In the case of The West River Bridge Company v. Dix, the doctrine was approved by a judicial dictum. Finally, in Butler v. Pennsylvania,5 the Supreme Court of the United States met the question, and unanimously disposed of it in the same manner as was done by the state courts, whose judgments have been quoted.

§ 553. It may, therefore, be considered as a settled point of constitutional law, settled both by the national and the state courts, that a public office bears no resemblance to a contract; and that state legislatures have full power over the public offices of the commonwealth, except so far as they may be restrained by the local constitutions. The clause of the United States Constitution which prohibits state laws impairing the obligation of contracts, has no application whatever to this subject.

4. Licenses.

§ 554. May a license to perform some act, or carry on some business, as that of selling spirituous liquors, or dealing in

15 Watts & Sergeant's R. 403, 418.

2 4 Barr's R. 49.

3 4 Wheaton's R. 518, 693. 4 6 Howard's R. 507, 548. 5 10 Ibid. 402.

lottery tickets, issued by a state to private individuals in pursuance of law, either with or without the payment of a fee, be annulled before the period of time during which it was to last has expired, by a subsequent legislative act repealing or modifying the original statute under which the license was issued? In other words, is such a license a grant, so as to be a contract between the state and the individual to whom it is issued? We shall find comparatively few cases in which this question is directly involved, and authoritatively answered. The word "license" is one familiar in the Common Law nomenclature. It there means a personal permission given by the owner of lands to an individual, for that person to do some act or series of acts upon the licenser's lands, which acts, but for the permission, would have been trespasses. Such licenses may be oral or written. In either case the Common Law declares a simple license, even though money had been paid for it, to be revocable at the will of the licenser.1 Are licenses from a state similar in their nature, mere naked permissions, and revocable at will? A very decided preponderance of judicial authority has answered this question in the affirmative. Upon principle there would seem to be no doubt of the correctness of this position. A license from the state authorizing a person to do some act which is generally forbidden, is a mere permission which excepts the individual from the operation of laws that would otherwise prohibit him, as well as all other citizens, from doing the specified act. Thus, when a statute provides for licensing persons to sell spirituous liquors, it vir tually says, spirituous liquors shall not be sold as a general rule, but to this rule there shall be some exceptions, and those who are licensed constitute the exceptions. A state license of the kind we are considering, has, therefore, no element of a contract, and does not fall within the protection of the national Constitution. These conclusions are supported by judicial dicta and decisions to which a brief reference will now be made.

§ 555. In Hirn v. The State of Ohio,2 the Supreme Court

1 See Wood v. Leadbitter, 13 M. & W. 838.

2 1 Ohio State R. 15, 21.

of Ohio say, while discussing the effect of a law which repealed a former statute permitting licenses to be issued: "The court is not disposed to question the power of the legislature in a matter of this kind, connected as it is with the public policy and domestic regulations of the state. Upon the ground of protecting the health, morals, and good order of the community, we are not prepared to say that the legislature does not possess the power to revoke such license. But where there has been no forfeiture of the license by abuse or violation of its terms, common honesty would require that the money obtained for it should be refunded in case of its revocation." This passage is, however, a mere dictum, not necessary to the judgment of the court, for it was held that existing licenses were not revoked by the repealing statute.

In the case of Adams v. Hackett,1 the Supreme Court of New Hampshire use the following language: "Bancroft & Co. had a general license authorising them to sell until April 1, 1850. It was a license granted by virtue of law. It had cost them a consideration to make it perfect, -the fees for recording; and although the amount is very trifling, still it was a consideration. They had acquired rights under their license. which had become fixed, and so far as those rights were concerned, the repealing law would be retrospective, and of course inoperative. Statutes which take away or impair vested rights acquired under existing laws, are retrospective and unconstitutional." It will be noticed that this language has particular reference to the New Hampshire constitution which, as we have seen, in terms forbids all retrospective laws. Still the passage is an authority for the position that a license is a contract; for it is only by regarding it as a contract between the state and the licensee, that he could acquire any vested rights by virtue thereof. A subsequent case, however, in the same state, pronounces the passage a dictum unnecessary for the decision of the question before the court, and repudiates its doctrine.

§ 556. In Phalen v. Virginia,2 the Supreme Court of the United States uses language which, although not the very 17 Foster's R. 289, 293.

28 Howard's R. 163.

ground of the decision, indicates the opinions of the judges who composed that high tribunal. The contention had respect to a statute of Virginia repealing a former law under which licenses to set up lotteries had been issued. The court actually held, as the basis of their judgment, that the prior statute did not make the licenses issued thereunder certain for any specified time; and also that Phalen's license had become inoperative and obsolete, so that he retained no rights under it. Mr. Justice Grier expressed an opinion that such licenses were not contracts at all, so as to be binding upon the legislature. After speaking of a variety of statutes which state legislatures may confessedly pass, such as recording acts, statutes of limitation, and the like, which must incidentally influence contracts, he observed: "If reasons of sound public policy justify legislative interference with contracts of individuals, how much more will it justify the limitation of licenses so injurious to public morals. Without asserting that a legislative license to raise money by lotteries cannot have the sanctity of a franchise or a contract in its nature irrevocable, it cannot be denied that the limitation of such a license as the present, is as much demanded by public policy as other acts of limitation which have received the sanction of the court."

1

It

§ 557. From these mere dicta I pass to a few cases where the point was expressly presented for decision. In Calder v. Kurby 1 (Mass. 1856), a license to sell liquors had been granted for a certain period; the fee paid therefor was one dollar. Before the period had expired, the license was annulled. was urged on the argument that such a license was a contract and within the protection of the national Constitution. The court held the contrary. The opinion of Mr. Justice Bigelow directly meets the question. He says: "The whole argument of the counsel for the plaintiff is founded on a fallacy. A license authorising a person to retail spirituous liquors, does not create any contract between him and the government. It bears no resemblance to an act of incorporation by which, in consideration of the supposed benefit to the public, certain rights and privileges are granted by the legislature to individuals, 15 Gray's R. 597.

1

under which they embark their skill, enterprise, and capital. The statute regulating licensed houses has a very different scope and purpose. It was intended to restrain and prohibit the indiscriminate sale of certain articles deemed to be injurious to the welfare of the community. The effect of a license is merely to permit a person to carry on the trade under certain regulations, and to exempt him from the penalties provided for unlawful sales. It therefore contained none of the elements of a contract. The sum paid for it was merely nominal; and there was no agreement either express or implied that it should be irrevocable. On the contrary it is manifest that this statute, like those authorizing the licensing of theatrical exhibitions and shows, sales of fireworks and the like, was a mere police regulation intended to regulate trade, prevent injurious practices and promote the good order and welfare of the community, and liable to be modified and repealed whenever, in the judgment of the legislature, it failed to accomplish these objects."

§ 558. In The State v. Holmes1 (N. H. 1859), the Supreme Court of New Hampshire came to exactly the same conclusion, upon precisely the same course of reasoning. Mr. Chief Justice Perley, in delivering the opinion, says: "It is an essential ingredient of a legal license that it confers no right or estate, or vested interest, but is at all times revocable at the pleasure of the party who grants it. Nor has the word any popular use which differs from the legal definition. In both the legal and the popular sense, the term license implies no right or estate conveyed or ceded, no binding contract between parties, but mere leave and liberty to be enjoyed as a matter of indulgence at the will of the party who gives the license." In another passage of the opinion, the licensee is likened to a public officer holding a position of personal trust, and liable to be deprived of his office by legislative action.

§ 559. In The Metropolitan Board of Excise v. Barrie 2 (N. Y. 1866), this subject very recently came before the Court of Appeals of New York. Under a statute passed in 1857, the defendant had received, in 1865, a license to retail

1 1 Chandler's R. 225.

27 Tiffany's R. 657.